SWAT Risk Management and Liability Reduction, Part 3

Written by Morefield, Bradley, Randy Means

In the first and second
part of this series, SWAT-type teams are called by a variety of different names
in different agencies and jurisdictions. However, they certainly have at least
one thing in common. The things they do and the training necessary to do them
both create enormous risks of injury, death and multi-million-dollar liability
exposures to individual law enforcement officials and their employing agencies.
This article suggests some ways those risks can be minimized.

In earlier columns, two
broad principles were discussed—choosing the right leaders and complying with 4th
Amendment “reasonableness” requirements. Specific recommendations
were offered including training in decision making, setting clear performance
expectations, evaluation of performance, remaining judicious in the use of
diversionary devices, and training in dealing with the disabled, including
mentally ill, and emotionally disturbed people more generally.

This
time it is a survey of some federal appeals court cases involving SWAT-type
operations decided in the last three years—provided to illustrate the kinds of
legal problems arising in this area. These cases are the law in the region in
which they are decided, but in other parts of the country are only interesting
and possibly persuasive.

Bishop v. Arcuri, 674 F.3d
456 (5th Cir. 2012)

A team of officers
executed a no-knock narcotics warrant on a residence based on information
provided by a confidential informant. They did not find dope, but the major
issue in the case is why they ran it as a no-knock. The detective who drafted
the warrant stated two reasons for applying for a no-knock instead of the
default method of knock and announce, 1) drugs would be destroyed if they
knocked and announced their presence and 2) knocking and announcing would
increase risk due to the inherent dangers in executing this type of
drug-related search warrant.

The court found that the
no-knock entry in this case was unreasonable and therefore illegal. It reasoned
that, if all it takes to avoid the knock and announce requirement is the
generalized possibility that knocking and announcing increases the risk of
losing evidence, every such warrant execution could be turned into a
no-knock—and that is something the Constitution and the Supreme Court will not
tolerate.

It took a similar view of
the safety issues, requiring that there be specification of why knocking and
announcing would increase danger to an unreasonable extent—like what intelligence information exists
about the location’s fortifications, guns on the premises, and criminal
histories of the occupants? The key to writing a no-knock search warrant
application that will pass constitutional muster is to describe each heightened
risk factor with particularity. The lesson? Move past copy and paste and avoid
generalities.

Carroll v. County of Monroe,
712 F.3d 649 (2nd Cir. 2013)

This case involved an
officer shooting a property owner’s dog during a warrant service operation. The
court found that, in this case, the officer’s action was reasonable and lawful
but the case serves as a reminder that a Fourth Amendment violation could be
found if the dog does not present a significant danger or when it is known
there are dogs on the premises and adequate measures are not taken to secure
the dogs or in other ways mitigate risk.

In another case, for
example, Thurston v. City of North Las
Vegas, a 9th Circuit opinion released in January 2014, the court
denied qualified immunity to officers who shot two of the property owner’s dogs
20 minutes after serving the warrant. Unresolved issues included the question,
Should the officers have secured the dogs or called animal control in those 20
minutes before the dogs were shot?

If there is a trial in
the case, more facts should surface about the circumstances of the shooting.
Regardless, liability exposures of this type involve not just dogs but other
property as well. Still, the propensity of animal owners in particular to sue
over the destruction of their animals is well known. The lesson? Care should be
taken to minimize the need for such actions where possible.

Part Two of this series
suggested being judicious and smart about the use of diversionary devices and
these cases illustrate this issue. They involve courts scrutinizing very
closely the use of tear gas and flash bangs. Rudy Escobedo, who lived in a 7th
floor apartment, had used cocaine, had a pistol, and had called 9-1-1 early in
the morning threatening to hurt himself.

The apartment was located
in a downtown area within blocks of a hospital and school and the timing of the
incident was before and during rush hour. SWAT and negotiators were concerned
because Escobedo had “high ground” and was armed with a weapon that could hurt
people at a considerable distance. After three hours of negotiation and failed
promises by Escobedo to come out of the apartment, a tactical plan was
executed, including volleys of tear gas.

When Escobedo still
failed to exit, the SWAT team made entry and used a flash-bang, igniting some
of the tear gas propellant and causing a fire which they promptly put out.
Finding that Escobedo could be nowhere but the bedroom, they broke down the
door and tossed another flash-bang. It went off 1–2 feet from Escobedo who was
crouched in the bedroom closet. When Escobedo lowered his gun from his head
toward an officer, officers utilized deadly force.

In the 2010 opinion,
which occurred before the trial in response to the district court denying
qualified immunity to certain officers, the court agreed with the lower court
to deny qualified immunity, on the basis that the officers’ use of tear gas and
flash-bangs might have been unconstitutional. The court criticized the police
for the fire that was caused when entry was made and for tossing the flash-bang
into the bedroom without knowing where people were and where it would land.

In addition to paying
close attention to the number of tear gas deployments and flash-bangs, the
court went as far as to dictate what police practice should be. The 2012 court,
which heard the case after an eight-day trial, back pedaled and backed off of
the critical nature of the earlier opinion. The point? Courts pay close
attention to the use of diversionary devices because the overuse of such
devices can make a police action unconstitutional.

Mlodzinski v. Lewis, 648 F.3d
24 (1st Cir. 2011)

Officers executed a
search warrant on the residence of a suspect accused of a brutal assault. The
suspect was quickly taken into custody but the officers then proceeded to
secure all occupants of the home. According to the lawsuit, a 15-year-old
female was put in handcuffs and then pushed to the floor where she injured her
knee. The lawsuit further alleged that an officer pointed an assault rifle at
the female’s head for seven to 10 minutes.

The court makes clear
that this type of conduct is a Fourth Amendment violation and certainly not
acceptable. It found that the 15-year-old was placed in metal handcuffs and
there was no reason to point an assault rifle at her head, noting also that the
suspect had already been removed from the house.

The court goes on to cite
a line of cases with similar facts—officers who had pointed weapons at young
people for little reason or extended periods of time. Though the case is an
example of the need to be mindful in dealing with young people, the issue would
extend to the elderly and more generally to people unrelated to the action and
who pose no particularized threat.

Bradley Morefield is a veteran law
enforcement officer, police lieutenant, and supervising attorney with a major
city police department. He is also the Legal Advisor for the Texas Tactical
Police Officers Association.

Randy Means is a partner in Thomas &
Means, a law firm specializing entirely in police operations and
administration. He has served the national law enforcement community full time
for more than 30 years and is the author of “The Law of Policing,” which is
available at lRIS.com. He can be reached directly at rbmeans@aol.com.